


Class. 
Book. 



^ 4 5'i 



.0 2,7 



/ 



THE RIGHT OF PERSONAL LIBERTY. 
SPEECH 



OF . ^J^ 



HON. MILTOI SAYLER, 

OF HAMILTON COUNTY, 



DELIVEEKD IN THE 



HOUSE OF REPRESENTATIVES OF THE STATE OF OHIO, 



ja:ntj.a:ry s9, ises. 



M — H 



COLUMBUS: 

RICHARD NEVINS, PRINTER. 

1863. 






•^ 



^i'Of 



SPEECH OF HON. MILTON SAILER. 



Mr. Dresel's Resolutions as to arbitray arrests being under consideration, 
Mr. Sayler said : 

Mr. Speaker : The wide range wbicli this debate has assumed, has almost 
caused us to lose sight of the questions properly involved. For prudential rea- 
sons it is perhaps well enough that the resolutions of the honorable member 
from Franklin (Mr. Dresel) have afforded an occasion to certain gentlemen for 
giving vent to smoldering campaign speeches, whose suppressed burning and 
smoking might else have produced consequences terrible to contemplate. It is 
well enough, too, that this House and "the rest of mankind," have thus been 
enlightened by their views of the object and purpose of the war, of the mode of 
its successful prosecution, of the great and crying sin of slavery, of its abolition 
by Executive proclamation, and of the nature and character of the coming year 
of jubilee. All this, sir, is well enough, but none of all this is involved in the 
subject matter properly before the House for discussion. Nor is it necessary in 
this debate to resort to questions foreign to the resolutions. The issues directly 
involved are broad enough, embracing, as they do, the great absolute right of 
PERSONAL LIBERTY to the American people. I propose therefore in what I shall 
say to confine my remarks to the two-fold right asserted by the President and 
impliedly denied by the resolutions, the right, first, to arrest without process of 
law, and second, to detain without benefit of habeas corpus, free citizens of the 
State of Ohio not connected with the military service of the country. In doing 
this I desire to appeal neither to the passions and prejudices of men nor to their 
partisan feelings, but alone to their sober judgment in tie light of history and 
of the hitherto uniform interpretation of our constitutioaal law. 

It appears, in the course of this discussion, as a matter of fact admitted upon 
all-hands, that eleven free citizens of the State of Oiio not connected with " the 
land or naval forces, or in the militia in actual service," have been " seized " 
without " warrant," " held" without " presentment or indictment," and denied 
" the right to a speedy and public trial by an impartial jury of the State ;" and 
that they have not been "informed of the na^iure and cause of the accusation," 
nor " confronted with the witnesses against ilhem." And it further appears that 
three of the eleven have been " transpor<;ed out of the State " for a supposed 
" offense committed within the same," ani imprisoned elsewhere. 

These extraordinary proceedings, so contrary to all our preconceived ideas of 
the rights of the citizen, and so utterlv at variance with all previous practice in 
this country, are founded upon a supposed power resident in the Chief Executive 
of the nation, a power which the present incumbent of that office himself dis- 
tinctly claims, and which is now asserted and defended, and the exercise of 
which is justified by the Republican leaders upon the floor of this House. 

In his message of July 4, 1861, the President of the United States claims for 
himself and for those whom he may see fit to invest with the same authority. 



the riglit, " according to his discretion to suspend tlie privilege of the writ of 
habeas coopus, or, in other words, to arrest and detain, without resort to the or- 
dinary processes and forms of law, such individuals as he might deem danger- 
ous to the public safety." This power he had previously exercised, and this 
power he continued to exercise to some extent, though it did not find its com- 
plete and final assertion until the issue of the proclamation of September 24, 
1862. This most remarkable executive document orders : 

"First. That during the existing insurrection, and as a necessary measure .or sup- 
pressing the same, all rebels and insurgents, their aiders and abettors within the United 
States, and all persons discouraging volunteer enlistments, resisting militia drafts or 
guilty of any disloyal practice, or offering aid and comfort to the rebels against the au- 
thority of the United States, shall be subject to martial law, and liable to trial and pun- 
ishment by court martial or military commission. 

" Second. That the writ of habeas corpus is suspended in respect to all persons arrest- 
ed, or who are now, or hereafter, during the rebellion, shall be imprisoned in any fort, 
camp, arsenal, military prison, or other place of confinement, by any military authority, 
or by the sentence of any court martial or military commission." 

This proclamation and the orders of the Secretary of War promulgated two 
day s thereafter, to carry out its purposes, providing for the appointment of a Pro- 
vost Marshal General, whose headquarters shall be at Washington, and of spe- 
cial Provost Marshals for each State, and defining their duties, not only suspend 
the privilege of the writ of habeas corpus, but trample upon the provisions of 
our State Constitutions, annul the laws of the States, create and define new and 
hitherto unknown offenses, dispense with the forms and processes of the judi- 
ciary, erect in their stead military commissions appointed and paid by the Presi- 
dent, clothed with power to arrest and imprison or otherwise punish at their dis- 
cretion the citizen for such acts committed or omitted, as the Chief Executive 
may be. pleased to call offenses, establish a system of espionage throughout the 
United States, and thus place every citizen under the immediate military com- 
mand and control of the President, and the liberties of every citizen, Avithout 
the possibility of a judicial investigation, at the mercy of irresponsible agents, 
who may be instigated by political prejudice, personal malignity, or by the mere 
wantonness of unusual and arbitray power, to take them away. 

This unsurpassed body of tyranny rnay seem harmless or trifling to those who 
enforce it, and to their friends and supporters, but not so, sir, to those who are 
or may be its victims. Nor is it satisfactory that we have been assured by the 
apologists of arbitrary power vipon this floor that the arrests have ceased, the 
occasion for them having passed away. I could wish for the honor of my coun- 
try that, they had ceased, bit the facts are otherwise. And even if they had, it 
is not this or that particular application of power of which a free people should 
be jealous, but the existence c/ the power itself and the uses of which it is sus- 
ceptible. The proclamation to-'Jay stands unrevoked, the orders under which 
its provisions are to be effected st?nd uncancelled, and thus this assumed author- 
ity on the part of the President, wUh the means of carrying it into execution, 
hangs to-day over the ht^ads of the h«retofore free citizens of the State of Ohio, 
and of the other States of the Union. 

Certainly so extraordinary power, over-riding as it does all the liberties hith- 

,erto guaranteed to the citizen, nmst hav£ gqme firm basis, and could not have 

(been assumed by the IVesident except for very grave reasons, and upon assu- 

i ranee made doubly sure that he was entitled to its exercise. He shall speak for 

l^imself. In his message, refei^red, to before, to the extra session of Congress, he 

thue announces his reasons a^id. argues his right, 

"Of course some consideration was given to the question of power and propriety, be- 
fore this matter was acted upon. TJie whole of the laws which were required to be faith- 
fully executed, were being resisted and failing of execution in nearly one-third of the 



States. Must they be allowed to finally fail of execution, even bad it been perfectly clear 
that by the use of means necessary to their execution, some single law, made in such ex- 
treme tenderness of the citizen's liberty, that practically it relieves more of the guilty 
than of the innocent, should, to a very limited extent, be violated? To state the question 
more directly, are all the laws but one to go unexecuted, and the Government itself go to 
pieces lest that one be violated? Even in such a case, would not the official oath be bro- 
ken if the Government should be overthrown, when it was believed that disregarding the 
single law would tend to preserve it? But it was not believed that this question was pre- 
sented. It was not believed that any law was violated. 

" The provision of the Constitution, that the privilege of the writ of habeas corpus shall 
not be suspended unless when, in cases of rebellion or invasion, the public safety may re- 
quire it, is equivalent to a provision — is a provision — that such privilege may be sus- 
pended when, in case of rebellion or invasion, the public safety does require it. It was 
decided that we have a case of rebellion, and that the public safely does require the qual- 
ified suspension of the privilege of the writ, which was authorized to be made. Now itis 
insistei that Congress, and not the Executive, is vested with that power. But the Consti- 
tution itself is silent as to which or who is to exercise the power; and as the provision 
was plainly made for a dangerous emergency, it cannot be believed the framers of the in- 
strument intended that in every case the danger should run its course until Congress 
could be called together; the very assembling of which might be prevented, as was in- 
tended in this case, by the rebellion." 

Now I will do the President the justice to say, that in these few words he has 
suggested every argument and assigned every reason for his action that his 
apologists in this House have been able to suggest or assign, and I will do them 
the justice to say that no one of them has suggested weaker arguments or 
assigned less satisfactory reasons. Analyzing the arguments of the President 
and the arguments that have been made in his behalf in the course of this dis- 
cussion, they are found to be two-fold : one class asserting that he is possessed 
of this power under the Constitution and by virtue of its provisions, and another 
that he is possessed of it by virtue of an authority inherent in him as Chief Ex- 
ecutive of the nation and Commander of its military forces, which overrides all 
constitutions and all laws, and is based upon the necessities of the people and 
the safety of the nation, — a revival of the Roman maxim, Salus jwjmli, suprema 
lex. 

No more grave or important subject than this can possibly agitate the public 
mind, and the time has come when the people of this country should thoroughly 
understand those great principles of civil liberty of which noble men have 
dreamed in all ages, and which have been transmitted to us as our common 
birthright by the self-devoted efforts and struggles, at the cost of the blood and 
treasure of our Saxon ancestors through a period of a thousand years. 
■" There are three great absolute rights of man — the right to life, to liberty, and , 
to property. These belong to man as man, and not by virtue of laws or political | 
institutions. It is the image in which God created him. The charter on which 
they depend was drawn from the skies, and bears the signet and stamp of 
Heaven. Any encroachment upon these rights, except by the consent of the 
people, is tyranny; and it is against such encroachment that those Avho would 
be free have struggled in all ages. To preserve and maintain these rights is the . 
primary end of human laws, and constitutes the great purpose for which govern- 
ments have been instituted among men. Life, Liberty, Property, these threer*\ v 
but the greatest of these is Liberty. To a race of noble men property has no / j 
value without freedom, and life is too dear when purchased at the price of/ 
slavery. 

What then constitutes this gi-eat right of personal liberty to the individual? 
I quote the definition of the illustrious and learned commentator of English Law. 
It consists, says Blackstone, "in the power of locomotion, of changing situation, 
or removing one's person to whatsoever place one's own inclination may direct ; 
without imprisonment or restraint, unless by due course of law^ Further on in 



h 



6 

the same connection, he says : " Of great importance to the public is the pre- 
servation of this personal liberty ; /or if once it were left in the power of any, the 
highest magistrate, to imprison arbitrarily whomsoever he or his officers thought 
proper, there would soon be an end of all other rights and immunities.^ Some have 
thought that unjust attacks, even upon life or property, at the arbitrary will of 
the magistrate, are less dangerous to the commonAvealth than such as are made 
upon the personal liberty of the subject. To bereave a man of life, or by 
violence to confiscate his estate, without accusation or trial, would be so gross 
and notorious an act of despotism, as must at once convey the alarm of tyranny 
throughout the whole kingdom ; but confinement of the person, by secretly hur- 
/ rying him to goal, where his sufferings are unknown or forgotten, is a less pub- 
' lie, a less striking, and therefore a more dangerous engine of arbitrary govern- 
ments." 

Now I am ready to admit. Sir, that in times of great peril to the commonwealth, 
when the State is in real danger, it may be necessary to abridge the rights and 
immunities of the citizen, and to restrain to a certain extent his personal liberty. 
This has been done under such circumstances in all free governments, and may 
be done in our own. I admit that our government to-day is in great peril, and 
that our national life is at stake. But I afiirm in opposition to the arguments 
and assumptions of the President, and in opposition to the arguments and 
assumptions of his apologists here, that the power thus to abridge the personal 
liberty of the citizen is vested exclusively in the Legislative and not at all in 
the Executive department of the government either of the United States or of 
the State of Ohio, and that even Congress or the Legislature can exercise this 
power only within definite and well-understood limitations and restrictions. And 
this first proposition I propose to establish by the history of the right and the 
doctrine concerning it in England, whence we have derived it, by the express 
words and the context of our Federal Constitution, and by the hitherto uniform 
decisions of our courts of justice. 

The right of personal liberty is an ancient one and bears the honors of many 
a century. It dwelt with the Greeks in the days of their glory, and with the 
Romans when they were free and pure. In turn they were enslaved, and their 
lost liberties became the portion of our rude Saxon ancestors who had made 
their way into Britain. It is the proud boast of English jurists that the three 
great absolute rights of the individual, constituting their liberties, are coeval 
Avith their form of government. From the beginning of the fifth to the beginning 
of the thirteenth cei.tury, however, amid the strifes of the Heptarchy, the inva- 
sion of the Danes, and the conquest of the Normans, even though Egbert and 
Alfred had lived and ruled, English history presents little else than a scene of 
anarchy and confusion. It was at Kunnymede, on the Iftth day of June, 1215, 
that the nation's liberties received their first definite recognition, and were put 
forever under the protection of law. After a century and a half of conquest the 
Barons had become worse Normans and better Englishmen, and strengthened 
by the support of the Monks, at whose head was that true Anglo-Saxon, Stephen 
Langton, Archbishop of Canterbury, they then and there compelled King John 
to accede to their demands, and to guarantee to the people the privileges and 
immunities recited in the Great Charter; in the Sgth chapter of which it is thus 
written: 

"NULI.US LIBEE HOMO CAPIATUR, VEL IMPRISONETUK, AUT DISSEISIATUR DE LIBERO 
TENEMENTO SUO TEL LIBERTATIBUS VEL LIBERIS CONSUETriDINIBUS SUIS, AUT UTLAGETUR, AUT 
EXULET, AUT AI.IQUO MODO DESTRUATUR, NEC SUPER EUM 3BIMUS, NEC SUPER EUM MITTEMUS, 
MSI PER LEGALE JUDICIUM PARIUM SUORUM, VEL PER LEGEM TERRiE. NULLI VENDEMUS, 
NULLI NEGABIMUS, AUT DIFFEREMUS, RECTUM VEL JUSTITIAM." 

(No freeman shall be arrested or imprisoned or deprived of his own free house- 



hold, or of his liberties, or of his own free customs, or outlawed, or banished, or 
injured in any manner, nor will we pass sentence upon him, nor send trial upon 
him, U7ilcs$ by the legal judgment of his peers or by the law of the land. To no 
one will we sell, deny, or delay, right or justice.) 

Magna Charta is the great fact of English history. It is the pure fountain 
whence the streams have flowed, by which so many generations of men have 
been gladdened and blessed. Saxon liberty, so long in abeyance, now became 
a definite and tangible possession. Henceforth, before the majesty of written 
law, there was neither lord nor vassal, Norman nor Saxon. The cottage was 
protected equally with the castle, and the rights of the humblest freeman were 
as sacred as those of the proudest baron. It is a noble feature of the great 
charter that it lifted from the shoulders of the masses many a burden " grievous 
to be borne," and distributed civil rights equally to all classes of freemen ; but 
in the words of Hallam, the most judge-like of historians : 

" The essential clauses of Magna Charta are those which protect the personal liberty of 
all freeinen, by giving security from arbitrary imprisonment and arbitrary spoliation. It is 
obvious that its words, interpreted by any honest court of law, convey an ample security 
for the two main rights of civil society. From the era, therefore, of King John's charter, 
it must have been a clear principle of our constitution, that no man can be detained in prison 
without trial. Whether the courts of justice framed the writ of Habeas Corpus in conformity 
to the spirit of this clause (Cap. XXIX), or found it already in their register, it became 
from that era the right of every subject to demand it. That writ, rendered more actively 
remedial by the statute of Charles II., but founded upon the broad basis of Magna Charta, 
is the principal bulwark of English liberty; and if ever temporary circumstances, OR the 
DOUBTFUL PLEA OT POLITICAL NECESSITY, shall lead men to look on its denial with apathy, the 
most distinguishing characteristic of our constitution will be eff'aced." — (Middle Ages, Chap, 
viii. Part 2.) 

To establish and confirm the rights set forth in King John's charter, cost, on 
the part of our English fathers, an almost continuous struggle from that period 
until the Revolution of 16SS. Magna Charta was indeed always considered 
fundamental law, but the frequent encroachments made upon it by reigning 
monarchs rendered it necessary that it should oftentimes be confirmed. This 
was done frequently during the reign of the next Henry, and Sir Edward Coke 
reckons thirty-two instances in which it was solemnly ratified during the century 
that elapsed between the first Edward and Henry the Fourth. 

Two centuries later came the reign of Charles I. An illustrious trial was 
now to bo held between kingly prerogative on the one hand and legal govern- 
ment on the other. Greater encroachments were to be made on the liberties of 
the people, and in turn those liberties were to be more firmly established and 
more widely extended. Charles revived enormities which his father had not 
dared to practice. He violated the essential clauses of Magna Charta, as well 
as many subsequent laws made in accordance with those clauses and defending 
the rights and liberties of the subject. In the list of the grievances recited by 
our English fathers these are prominent : " illegal exactions," " arbitrary cojn- 
mitments" "quartering of soldiers or sailors," and '-infliction of punishment by 
martial law.'' Against such encroachment on their ancient liberties guaranteed 
to them in the Great Charter four centuries before, they determined to provide 
an eternal remedy. That remedy they called the Petition of Right, and it con- 
stitutes the second great charter of English liberty. In it they pray the King : 

" That no person hereafter be compelled to make or yield any gift, loan, benevolence, 
tax, or such like charge, without common consent by act of Parliament; and that none 
be called to answer or take such oath, or give attendance, or to be confined or otherwise 
molested or disquieted concerning the same, or for refusal thereof; and that no freeman 
in any such manner as is before mentioned be imprisoned or detained; and that your Majesty 
would be pleased to remove the said soldiers and marines, and that your people may not 



8 

be so burthened in time to come; and that the aforesaid commissions for proceedinff by mar- 
tial law may be revoked and annulled; and that hereafter no commissions of the like nature 
may issue forth to any person or persons whatever to be executed as aforesaid, lest by 
colour of them any of your Majesty's subjects be destroyed or put to death contrary to the laws 
and franchise of the land." 

This Petition of Right was ratified by diaries in the most solemn manner in 
the third year of his reign, whereby, says Macaulay, (Hist, of Eng., Vol. 1, 
Chap. 1), " he bound himself never again to raise money without the consent of 
the Houses, 7teve)- again to imprison any person, except in due course of law, and 
never again to subject his people to the jurisdiction of courts-martial ^ 

In the sixteenth year of the reign of the same Charles the court of star-chamber 
was also abolished, to the general joy of the whole nation. This was a very 
ancient court, with an original limited jurisdiction, but long before the days of 
Charles had become an instrument of fearful oppression to the people of England, 
and that too in a manner strikingly analogous to the oppression of those who 
administer our own Government to-day. Its original legal jurisdiction was 
stretched, as Lord Clarendon tells us, (Hist, of Reb., book 1 and 3) : 

" To the asserting of all proclamations and orders of state; to the vindicating of illegal 
commissions, and grants of monopolies; holding for honorable that which pleased, and 
for just that which profited, and becoming both a court of law to determine civil rights, 
and a court of revenue to enrich the treasury ; the council table by proclamation enjoining 
to the people that which was not enjoined by the laws, and prohibiting that which ivas not pro- 
hibited; and the star-chamber, which consisted or the same persons in different rooms, 
censuring the breach and disobedience to those proclamations by very great fines, impris- 
onments, and corporal severities; so that any disrespect to any acts of state or to the 
persons of statesmen, was in no time more penal, and the foundations of right never more 
in danger to be destroyed." 

These two illustrious grants to civil liberty, to wit : the enactment of the Peti- 
tion of Right and the abolishment of the court of star-chamber, belong indeed, sir, 
to the reign of Charles I.; but the heart of Charles went not with his grants. He 
was faithless and insincere. The eight remaining years of his life were spent in 
a struggle with the people against the very grants of liberty he himself had made. 
That struggle was fatal, as such struggles must ever be; and in 1649 the reign 
of this over- reaching and misguided King went down in darkness and blood. 

The next great step in the establishment of the right of personal liberty to 
our Saxon fathers was taken in the nineteenth year after the restoration of 
Charles II. to the throne of England. It is certainly not unworthy of mention, 
sir, that during this reign the slavish tenures introduced by William the Norman, 
with all their oppressive appendages, were removed from incumbering the estates 
of the subject ; but that which particularly concerns us now is the additional 
security of the person of the subject from imprisonment obtained by the habeas 
corpus act of 1679. " Magna Charta'," says Blackstone," only, in general terms, 
declared that no man shall be imprisoned contrary to law: the habeas corpus act 
points him out effectual means, as well to release himself, though committed even 
by the King in council, as to punish all those who shall thus unconstitutionally 
misuse him." This act is, indeed, the great bulwark of the English constitution, 
and is scarcely less beneficial than the charter of Runnymede, and yet, sir, it 
only reaffirmed and made effectual to the people a right fully recognized and 
established long before. On this point I again introduce the testimony of 
Hallam : 

" It is a very common mistake," he says, " and that not only among foreigners, but many 
from whom some knowledge of our constitutional laws might be expected, to suppose that 
tnis statute of Charles II. enlarged in a great degree our liberties, and forms a sort of 
epoch in their history. But, thougli a very beneficial enactment, and eminently remedial 
in many cases of illegal imprisonment, it introduced no new principle, nor conferred any 



right upon the subject. From the earliest records of the English law, no freeman could 
be detained in prison except upon a criminal charge, or conviction, or for a civil debt. 
In the former case, it was always in his power to demand of the Court of King's Bench 
a writ of habeas corpus ad subjiciendum directed to the person detaining him in custody, by 
which he was enjoined to bring up the body of the prisoner with the warrant of commit- 
ment, that the Court might judge of its suflBciency, and remand the party, admit him to 
bail, or discharge him, according to the nature of the charge. This writ issued of right, 
and could not be refused by the Court. It was not to bestow an immunity from arbitrary 
imprisonment, which is abundantly provided in Magna Charta, if indeed it were not much 
more ancient, that the statute of Charles II. was enacted ; but to cut off the abuses by 
which the Government' s lust of power, and the servile subtlety of Crown lawyers had im- 
paired so fundamental a privilege." (Constit. Hist, of England: Ch. XIII.) 

From the reign of Charles II. we may date the complete restitution of Eng- 
lish liberty, taken away by the Norman conquest. The glory of this belongs to 
the people, however, and not to the King. As it is written of him in the ancient 
records, "in truth he was a jolly King, and had a squeeze of the hand for every 
visitor and a jest for every occasion," and yet, like some other illustrious jesters, 
he demonstrates very well how, in England as well as in Denmark, a man " can 
smile, and smile, and be a villain." So far as the Second Charles himself is 
cancerned, the whole tendency and effort of his reign was to undermine the lib- 
erties of the people, and yet, in spite of that tendency and effort, the people 
wrested from him and established for themselves suflScient power to assert and 
preserve their liberty, whenever invaded by the royal prerogative. The corner- 
stone of their power and security was the habeas corpus act, by virtue of which, 
Lord Campbell says, " personal liberty has been more effectually guarded in 
England than it has in any country in the woi'ld ;" a proud boast, sir, which 
America has hitherto disputed with the mother land, but which now, to her shame, 
she must yield. 

The strength with which the liberties of the English people had been fortified 
by these successive struggles is well evinced in the memorable catastrophe of the 
next reign. For when James II., brother of the late King, attempted to enslave 
his subjects by obtaining the repeal of the habeas corpus act, which, Macaulay 
tells us, " he hated, as it was natural that a tyrant should hate, the most stringent 
curb that ever legislation imposed on tyranny," he found that Tories as well as 
Whigs were against him, and that the great writ was prized not less by the one 
than by the other. And afterwards, when he attempted to exercise the power of 
dispensing loith the operation oj laiv as applied to particular individuals, and im- 
prisoned the seven Bishops because they refused to concur in said assumed power, 
the judges reaffirmed the rights of the subject, and James II. was driven from 
the tlirone of his ancestors. Nor were William and Mary permitted to ascend 
the throne until Parliament had set forth that there was an original contract be- 
tween King and people, which James had broken, and had published a Declaration 
of Rights, in which they affirmed : " That the pretended power of suspending 
laws, and the execution of laws, by regal authority, without the consetit of Par- 
liament, is illegal ; that the commission for creating the late court of commission- 
ers for ecclesiastical causes, and all other commissions and courts of the like 
nature, are illegal and pernicious ; that elections of members of Parliament ought 
to be free ; and that the freedom of speech or debates, or proceedings in Parlia- 
ment, ought not to be impeached or questioned in any court or place out of 
Parliament." 

The Bill of Rights, the Toleration Act, and the Act of Settlement, with its 
conditions, Blackstone tells us, "have asserted our liberties in more clear and 
emphatical terms ; have confirmed and exemplified the doctrine of resistance, 
when the Executive Magistrate endeavors to subvert the constitution ; and have 
maintained the superiority of the laws above the King, by pronouncing his dispen- 
sing power to be illegal." 



10 

. The reign of Charles II. may be given as the period of the thorough and com- 
plete re-establishment of the civil and political liberties of England, but the 
revolution of 1688 is the happy era of their full and explicit acknowledgment 
and definition. From this day forth no monarch has dared attempt any serious 
infraction upon them. Amid all the commotions of subsequent years, amid party 
strifes, amid foreign wars, amid domestic insurrections, these liberties have stood 
unshaken, and their great palladium, the act of habeas corpus, has been kept safe 
within the temple, untouched by the sacreligious hand of King or Queen. To 
show how securely these liberties were guarded, and how far beyond the power 
of the King was the suspension of the writ of habeas corpus, and to what a limited 
extent only it might be interfered with even by act of Parliament, I need but 
refer you to the events of 1745. During this year England was disturbed at 
once by war abroad and rebellion at home. While the troops of George II. 
were on the Continent giving battle to the French, Charles Edward, the Pretender, 
asserted his right to the throne, and, at the head of Scottish clans, led by chiefs 
bearing such great names as Clanronald, M'Donald, and Cameron of Lochiel, 
marched forward and crossed the English borders. With a foreign war and a 
domestic insurrection on his hands at once, his best troops abroad, the land full 
of hidden enemies, and the fears of the loyal people justly aroused, now, if ever, 
the monarch might be expected to stretch his authority. The habeas corpus act 
was, indeed, suspended, but by whom and to what extent? Even then 

" The Executive ■power^'' says De Lolme, in his admirable essay on the Constitution of 
England, "(fie? not thus, of itself, stretch its own authority ; the precaution was deliberated 
upon and taken by the representatives of the people ; and the detaining of individuals, 
in consequence of the suspension of the act, was limited to a certain fixed time. Notwith 
standing the just fears of internal and hidden enemies, which the circumstances of the 
times might raise, the deviation from the former course of the law was carried no farther 
than the single point we have mentioned. Persons detained by order of the Government were 
to be dealt with in the same manner as those arrested at the suit of private individuals ; the jiro- 
ceedings against them tvere to he carried on no otherwise than in a public place ; they were to be 
tried by their peers, and have all the usual legal means of defence allowed to them — such as calling 
of witnesses, peremptory challenge of juries, etc." 

Twenty years later (1765) Blackstone wrote his celebrated Commentaries on 
Fnglish Common Law. So clearly was the doctrine of the personal liberty of 
the subject established at this time, that he thus refers to it : 

"In a former part of these Commentaries we expatiated at large on the personal liberty 
of the subject. This was shown to be a natural, inherent right, which could not be sur- 
rendered or forfeited unless by the commission of some great and atrocious crime, and 
which ought not to be abridged in a7iy case without the special permission of law. A doctrine 
coeval with the first rudiments of the English Constitution, and handed down to us from 
our Saxon ancestors, notwithstanding all their struggles with the Danes, and the violence 
of the Norman conquest; asserted afterwards and confirmed by the conqueror himself and 
his descendants; and though sometimes a little impaired by the ferocity of the times, and 
the occasional despotism of jealous or usurping princes, yet established on the firmest 
basis by the provisions of Magna Carta, and a long succession of statutes enacted under 
Edward III. To assert an absolute exemption from imprisonment in all cases, is incon- 
sistent with every idea of law and political society, and in the end would destroy all civil 
liberty, by rendering its protection impossible; but the glory of the English law consists in 
clearly defining the times, the causes, and the extent, when, jvherefore, and to what degree the im- 
prisonment of the subject may be lawful. This it is which induces the absolute necessity of 
expressing upon every commitment the reason for which it is made, that the court, upon 
an habeas corpus, may examine into its validity, and, according to the circumstances of 
the case, may discharge, admit to bail, or remand the prisoner." ("Vol. iii. p. 133.) 

Again, in speaking of those periods when the State may be in real danger, and 
it may consequently become necessary to abridge to some extent the liberties of 
the citizen l)y a temporary and limited suspension of the privileges of habeas 
corpus, he sajs : 



11 

"But the happiness of our Constitution is, that it is not left to the executive power to deter- 
mine when the danger of the State is so great as to render this measure expedient; for it is the 
Parliament only, or legislative ^oicer, that, whenever it sees proper, can authorize the Crown, 
by suspending the Habeas Corpus Act for a short and limited time, to imprison suspected per- 
sons without giving any reason for so doing." (Vol. i. p. 136.) 

To the same effect, Sir, are the unanimous decisions of the English courts 
since the revolution of 1688, nor had the doctrine thus set forth as to the per- 
sonal liberty of the subject been in any way controverted since that period. 
This was the happy result of the successive struggles I have briefly sketched, 
since the day the Barons met King John at Runnymede. The right of personal 
liberty — in itself a natural right, inherent in every man — for our English fathers 
was now asserted, established, and defined by law, and a speedy and effective 
remedy provided for its infringement. The despotic idea of the divine right of 
kings had given way to the democratic idea of the divine right of the people ; 
and the monarch, though he held a sceptre and wore a crown, was but the execu- 
tive officer of their will. King, Lords, and Commons had united in the passage "^ 
of the Habeas Corpus Act of Charles II.; they must unite again. Sir, before its 
provisions could be infringed upon in the least particular, or with reference to ay 
single citizen. But the struggles of five centuries, the waste of treasure, and 
the flow of blood had accomplishod for the people more than that. Even the 
united action of King, Lords, and Commons had its limits, which were well 
understood, well established, and soon reached. The personal liberty of the 
subject was secwe, his house was his castle, and his rights were higher than 
kingly power. The time had come when, in the proud words of Lord Chatham, 
" the poorest man in his cottage may bid defiance to all the forces of the Crown. 
It may be frail; its roof may shake; the wind may blow through it; the storm 
may enter; the rain may enter; but tlie King of England can not enter it. All 
his power dares not cross the threshold of that ruined tenement^ 

In 1787 our own Constitution was formed. The American colonists had left 
behind them their homes and their native land, but not so, Sir, their rights and 
liberties under the laws of England. These were their birthright and their 
inheritance, and these were the companions of their exile. In more emphatic 
terms than ever, they gave expression to them in their early forms of colonial 
government. They are familiar with the right of personal liberty, and the more 
jealous of it because in part they had fled from oppression. They are familiar 
with the principle of Habeas Corpus, and engraft it in every Bill of Rights. 
And when the time came that the colonies were to separate from the mother 
country, and our Federal Constitution was finally formed, in an article devoted 
exclusively to the organization, powers, and duties of C ongr ess, and in a section 
of that article devoted to limitations of those le^islaCive powers, they inserted 
this clause: 

"The privilege of the writ of habeas corpus shall not be suspended, unless when, in 
cases of rebellion or invasion, the public safety may require it." (Art. I., Sec. 9.) 

The second article of the Federal Constitution is devoted to the organization, 
powers, and duties of the Executive department, as the first to the organization, 
powers, and duties of the Legislative. If the framers of the Constitution had 
intended to confer the power of the suspension of habeas corpus, under any cir- 
cumstances, upon the President, is it not most manifest that they would^ have 
inserted this clause in the second article, and not in the first — among the limita- 
tions of the powers of the Executive, and not among the limitations of the 
powers of Congress? Nor can it be said. Sir, that so important a clause as this 
was carelessly inserted. The right of the subject to the benefit of habeas corpus 
was, as we have seen, the most important point in controversy in the long struggle 
of centuries between monarch and people, between prerogative and popular lib- 



12 

erty, between arbitrary government and free institutions. The protection of 
this writ, and consequently of the liberties of the people against executive en- 
croachment, must have engaged in an eminent degree the attention of men who 
had just rebelled against the authority of their old government, and were now 
employed in the formation of new, and, as they supposed, freer institutions. 
Since James II. had been driven from the throne for executive usurpation, no 
sovereign of England had pretended to the power of suspending habeas corpus 
in any emergency or under any circumstances. It was definitely and universally 
understood that Parliament alone possessed that power. The question with the 
framers of our Constitution, therefore, was, not whether the President will ever 
attempt the exercise of such power; of that they never dreamed; but will the 
legislative department, to which alone this power belongs, abuse its exercise ? 
To guard against such abuse, they write this clause, and virtually say, that 
whereas Congress alone possesses the power of suspending the privilege of 
habeas corpus, yet even Congress shall not exercise this power "unless when, 
in cases of rebellion or invasion, the public safety may require it," In the 
words of the venerable Chief- Justice of the United States, "The introduction 
of these words is a standing admonition to the legislative body of the danger of 
suspending it, and of the extreme caution they should exercise before they give 
the Government of the United States such power over the liberty of the citizen." 
In view of which, I do not hesitate to aiErm that the President, in suspending 
the privilege of the writ of habeas corpus throughout the entire Northern and 
Western States — States in which there is neither "rebellion" nor "invasion," 
where the courts are open, the laws in full force, and the officers of the law un- 
impeded in the discharge of their duties, and where, consequently, the "public 
safety" does not " require it" — has exercised a power to which Congress itself 
is not entitled under our Federal Constitution. 

And yet, Mr. Speaker, this exercise of despotic power finds its appologists 
here ; and members of this House, eminent for their legal learning, some of 
whose heads have grown white in its pursuit, have the astonding efi'rontery to 
affirm that our revolutionary fathers intentionally gave into the hands of their 
Chief Executive greater power in this respect than that possessed by the sov- 
ereign of England. Is it credible, sir, that an assembly of men, in whose veins 
ran Saxon blood; whose fathers had beheaded the First Charles, and driven the 
Second James from his throne, for violations of Magna Charta, and who had 
themselves just successfully rebelled against George III, assigning as a reason 
therefor, among others, that he had stretched his prerogative beyond just limits, 
in that he had " affected to render the military independent of and superior to 
the civil power;" in that he had "deprived them in many cases of the benefits 
of trial by jury ;" and in other things of like nature, written in the Declaration 
of Independence, — is it credible, sir, that such men, descended from such fath- 
ers, and having achieved such ends, should now commit into the hands of one 
man, chosen from among themselves, every guarantee of peusonal liberty 
which their fathers had gained by the struggles of a thousand years, and for a 
higher and clearer assertion of which they themselves had just passed through 
the dark trials of the revolution ? Such pretended arguments from such men 
serve but to show the weakness of their cause, and how even the learned in the 
law, when in the advocacy of a bad case, will sometimes condescend to the bold 
assertions and untenable positions of the petifogger. 

But the framers of our Constitution did more for the establishment and pro- 
tection of the personal liberty of the citizen than the mere insertion of this 
clause restricting the power of Congress in the suspiuision of the writ of habeas 
corpus. That Constitution, sir, was the work of nu^i who breathed the air of 
freedom, and who, in the cause of freedom, had " pledged their lives, their for- 
tunes, and their sacred honor." The great God had given success to their efforts, 



13 

and now they were to form an instrument that should perpetuate this freedom to 
the latest generations of men. The instrument is worthy of the framers, and 
breathes their spirit throughout. 

In nothing is this spirit more manifest than in the careful manner iu which 
they restrict and guard Executive power. They had learned by experience to 
be jealous of this department of government ; they knew its tendency to usur- 
pation ; and so far from extending its power, confined it within narrow limits. 
In the words of Chief Justice Taney, " they carefully withheld from it many of 
the powers belonging to the Executive branch of the English Government, which 
were considered as dangerous to the liberty of the subject — and conferred (and 
that in clear and specific terms) those powers only which were deemed essential 
to secure the successful operation of the Government." They limit the Presi- 
dent's term of office to four years, and make him personally responsible for his 
conduct by providing for his impeachment in case of malfeasance. He is indeed, 
" commander-in-chief of the army and navy of the United States, and of the mi- 
litia of the several States, when called into the actual service of the United 
States," but Congress alone has power to make the necessary appropriations for 
the support of said army and navy. The militia of the several States, when in 
the victual service of the United States, are indeed under his command, but 
'• the appointment of the officers is reserved to the States, as a security against 
the use of the military power, for purposes dangerous to the liberties of the peo- 
ple or the rights of the States." His civil powers are as carefully restricted as 
his military, so that he cannot appoint officers or make treaties, without the con- 
sent of one or both branches of the legislative department, A few brief lines of 
the Constitution explicitly enumerate all his powers and prescribe all his duties. 

But the Constitution of the United States goes further than this in the estab- 
lishment and security of the personal liberty of the citizen. It imposes other 
restrictions upon the government, and asserts other right& for the people, among 
which are the following : 

•'-' Congress shall make no law respecting an establishment of religion, or prohibiting 
the free exercise thereof; or abridging the freedom of speech or of the press ; or the right of 
the people peaceably to assemble, and to petition the government for a redress of griev- 
ances." (Art. I., Amendments.) 

" A well regulated militia being necessary to the security of a free State, the right 
of the people to keep amd bear arms, shall not be infringed." (Art. II., Amendments.) 

"The right of the people to be secure in their persons, houses, papers and effects, against 
unwarrantable searches and seizures, shall not be violated, and no warrant shall issue, 
but upon probable cause, supported by oath or afi&rmation, and particularly describing 
the place to be seaiched, and the persons or things to be seized." (Art. IV., Amendments.) 

What are unreasonable searches and seizures ? We are given to understand 
by graTe members of this body, that a seizure is only then unreasonable when 
the person seized has not been guilty of crime. The interpretation is incorrect 
and falls short of the meaning of the clause. A seizure is unreasonable when- 
ever made without warrant issued upon probable cause, supported by oath, and 
describing the person. 

"No person shall be held to answer for a capital or otherwise infamous crime unless 
on <i presentment or indictment of a grand jury, # * * » nor be deprived 
of life, liberty or property without due process of law." (Art. V., Amendments.) 

" D.ue process of law," I need not say, is judicial process — the process of the 
courts and officers connected with them. It follows, therefore, that the President 
of the United States has no power to arrest any citizen, not connected with the 
militaiy service, with whatever offense against the United States he may be 



u 

cliai'ged, and whatever evidence there may be of his guilt ; and much more, that 
he has no power to authorize any other officer, whether civil or military, to make 
such arrests. 

-"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public 
trial by an impartial jury of the State or district wherein the crime shall hare been com- 
mitted (which district shall have been previously ascertained by law), and to be informed 
of the nature and cause of the accusation; to be confronted with the witnesses against 
him; to have compulsory process for obtaining witnesses in his favor, and to have the as- 
sistance of counsel for his defense." (Art. VI., Amendments.) 

Wherefore it follows that even though the privilege of the writ of habeas cor- 
pus may have been legally suspended by act of Congress, and a citizen arrested 
and imprisoned by " due process of law," he still could not be detained in prison- 
or brought to trial before a military tribunal, because by the terms of this Article 
the founders of our Government decree that he " shall enjoy the right to a sjjcedy 
'and public trial by an impartial j^cry of the iState and district wherein the crime 
shall have been committed.^' This is manifestly a correct interpretation of the 
rights of the citizen under this Article, and it is precisely the same doctrine 
which De Lolme tells us prevailed in England when Parliament suspended ha- 
beas corpus at the time of the invasion of Charles Edward the Pretender. 

Every one of these guarantees of personal liberty to the subject has been re- 
iterated in almost precisely the same words in the Constitution of our own State,. 
and so clear and evident is their meaning that I need not stop to discuss to Avhat 
extent they have been violated by the proclamation of the President, and by the 
military arrests of our citizens and their subsequent detention in pi-ison. The 
Executive has not only assumed powers which belong exclusively to the coordi- 
nate departments of government, but powers which the people have never delega- 
ted tf® any department, and which all three combined could not constitutionally ex- 
ercise. 

I do not, of course, deny the right of the Executive to issue proclamations. 
There are many precedents for that both in England and America, but in neither 
of these countries is it the legitimate use of a proclamation either to make law 
or to suspend law, or to interfere in any Avay with the processes of law, but only 
to announce what law is and to warn against its violation. This proclamation^ 
usurping as it does legislative power in the suspension of a judicial process, has 
no precedent in American history, and none in English history since James II 
laid claim to " dispensing " power and was driven from his throne. It is not an 
English proclamation, it is a Spanish pronunciamento, and many like unto it 
may be found in the history of that despotic government. 

But a venerable and learned member of this body has attempted to de- 
duce this power of the President from the terms of his oath of office, Avherein 
he swears, " faithfully to execute his office" and to " preserve, protect, and de- 
fend the Constitution of the United States;" by virtue of which oath, we are 
told, " he is vested with the whole power of the people, * * * and may 
neither ask Congress, Cabinet, or men." Now I utterly deny that there is any 
possible sense in which the President may be said to be " vested with the whole 
power of the people," or that he is charged with the duty to " preserve, protect, 
or defend the Constitution," in exclusion of or superiority to the legislative or 
judicial department. He is sworn " faithfully " to discharge the duties of his 
" office.'" That office is one of limited grants, the powers and duties of which 
are clearly defined in the Constitution he is sworn to protect. Outside of these 
prescribed duties and powers he has no more authority than any other citizen,, 
and he is as much sworn to " protect " the Constitution against usurpation or in- 
vasion on his own part as against usurpation or invasion on the part of others. 



15 

In the third section of the second article it is made a duty of his "office" that 
"he shall take care that the laws be faithfully executed ;" but this does not 
authorize him to execute laws himself, nor through agents or officers, whether 
civil or military, of his own appointment. He is to take care that the laws be 
faithfully executed, and that they be executed in the manner prescribed by the 
Constitution and the laws themselves, as expounded and adjudged by the judicial 
department of government. But he certainly can not be said to " take care that 
the laws be faithfully executed" when he usurps legislative power by suspend- 
ing the writ of habeas corpus, and judicial power by arresting and imprisoning 
the citizen of his own exclusive authority. The legislature and the judiciary 
are co-ordinate and not subordinate departments of government, and the execu- 
tive has no more authority to execute their functions, by making or suspending 
law, or by exercising the processes of the courts, than any other citizen. As no 
argument for this can be deduced from the nature of the executive office under 
the Constitution, so neither can any argument be deduced for it from the nature 
of sovereignty, or the necessity of government for self-defense in times of tumult 
and danger. The President asks if it is not better that he should violate one 
law than that others should be permitted to violate many. In the light of his 
official oath, solemnly sworn in the presence of God and man, I answer, no! It 
is not better that he should violate any law. Let him '■'•faithfully execute the 
office of President" then, come what may, he is not responsible. Let him remem- 
ber, if "it must needs be that offences come," that the "wo" is pronounced only 
on "that man by whom the offence cometh." Let him rather heed the words of 
the Father of his Country, in his Farewell Address to the American people : 

"Let there be no change by usurpation; for though this, in one instance, may be. 
the instrument of good, it is the customary weapon by which free governments are 

DESTROYED. ThE PRECEDENT MUST ALWAYS GREATLY OVERBALANCE, IN PERMANENT EVIL, 
ANY PARTIAL OR TRANSIENT BENEFIT WHICH THE USE CAN AT ANY TIME YIELD." 

Moreover, in the words of one of our most learned jurists, " The Government 
of the United States is one of delegated and limited powers. It derives its 
existence and authority altogether from the Constitution, and neither of its 
branches, executive, legislative, or judicial, can exercise any of the pdwers of 
government beyond those specified and granted." This doctrine is clearly and 
emphatically set forth in the tenth article of the amendments to the Constitution : 

"The powers not delegated to the United States by the Constitution, nor prohibited by- 
it to the States, are reserved to the States respectively, or to the people." 

The States, and the people of the States, these are the source of whatever 
power pertains to the Federal Government, and with them is the residuum of 
power. What the States have delegated, belongs to the Federal Government; 
what they have not, vests in themselves. What the people of any State have 
delegated, belongs to the State Government; what they have not, as befor§, 
abides with them. Thus our fathers overturned the old despotic ideas, and the 
people of America became citizens, and not subjects; sovereigns, and not slaves. 

Even if it were true, Mr. Speaker, that the power to suspend the privilege of 
the writ of habeas corpus vested under certain circumstances in the President, 
yet certainly the most enthusiastic advocate of executive power could not there- 
fore pretend that there vested in him also the power to set aside all these other 
express and unmistakable constitutional guarantees of personal liberty to the 
citizen, and that he was therefore entitled to trample under foot the provisions 
of our State Constitution, to annul our State laws, to institute new and unknown 
offenses, to substitute the report of some deputy provost-marshal for the present- 
ment of a grand jury, to arrest the citizen by officers, whether civil or military, 
of his own appointment, to disregard judicial forms, to detain in prison, to deny 



16 

a "speedy trial," or to substitute a military commission for a judicial court and 
jury required by the Constitution. 

For the correctness of the proposition, however, that the power to suspend the 
privilege of the writ of habeas corpus vests exclusively in the legislative, and 
not at all in the executive department of our government, I have still another 
argument to adduce. In addition to the arguments already set forth, drawn from 
the history of the writ, the decisions of the English courts, the analogies of the 
two governments, the express words and the context of our own Constitution, 
I am able, finally, to array in favor of this opinion the uniform decisions of our 
American courts and opinions of our American jurists. In addition to the great 
English names of Coke and Blackstone and Hale and Mansfield, already adduced, 
I have yet to adduce the equally great American names of Marshall and Kent 
and Story and Taney. Mr. Justice Story, whose name will ever live in the his- 
tory of American jurisprudence, whose authority is of the highest kind, and who 
was for a long time a member of the Supreme Court of the United States, thus 
speaks of the writ of habeas corpus in his Commentaries on the Constitution : 

"Hitherto no suspension of the writ has ever been authorized by Congress since the 
establishment of the Constitution. It would seem, as the power is given to Congress to sus- 
pend the writ of habeas corp>us in cases of rebellion or invasion, that the right to judge whether 
the exigency had arisen must exclusively belong to that body." (3 Com. on Constitution, 
Sec. 1336.) 

But we are told by the honorable member from Montgomery that this is only 
"the opinion of an author writing a book," and therefore not "to be received 
without question." It is true, Mr. Speaker, that Justice Story, in erecting that 
great monument to his own genius, his " Commentaries on the Constitution," 
was only "writing a book," only forming public opinion, only instructing the 
American people in their political rights and duties, only instilling sentiments 
into the minds of young men. Only "writing a book" ! a book that is studied 
in every literary college and school of law in the land ; a book that is read by 
every young man who hopes to rise to a place of influence and distinction among 
his fellows; a book to be found in almost every library, and whose sentiments 
and teachings will live forever. Only a book! and yet a book in view of which 
Story might have repeated the lines of Horace with more truth than the author 

himself : 

"Exegi monumentum sere perennius, 
Regalique situ pyramidum altius." 

But I am willing to concede much, Mr. Speaker, to the prejudices of an old 
lawyer in favor of judicial decisions, and my next quotation shall not be from 
"the opinion of an author writing a book," but in accordance with his own terms, 
from " a legal decision, prepared for the bench with all the care of a conscientious 
judge;" and that judge shall be none less than Chief- Justice Marshall, and that 
bench none less than the Supreme Court of the United States, in delivering the 
opinion of which, more than half a century ago, when Jefferson was President, 
he used these words: 

"If at any time the public safety should require the suspension of the powers vested 
by this act [habeas corpus) in the courts of the United States, it is for the legislatubb io 
say so. That question depends on political considerations, on which the leoislatuee is to 
decide. Until the legislative will be expressed, this court can only see its duty, and must 
obey the laws." (4 Cranh. 101.) 

To the same effect is the decision of Chief-Justice Kent of the Supreme Court 
of New York, in 1513. {In re Stacey, 10 Johnson, 328.) And the same doc- 
trine was reiterated by the Supreme Court of Louisiana, in 1815, in the case of 
Johnson v. Duncan. (3 Martin, 531.) The honorable member from Cuyahoga 



17 

has told us that this is a matter about which the opinious of judges are pretty 
equally balanced, and yet that member, with all his skill as a lawyer, and with 
all his powers of research, has failed to produce decisions contrary to those to 
which I have referred; nor has this been attempted by the member from Mont- 
gomery, or by the member from Logan. I think I am safe in asserting. Sir, that 
from the establishment of our courts until the year of grace 1861 no such opinion 
was ever asserted by any respectable court or by any respectable lawyer. I 
know, Sir, that since the advent of the present. Administration there are some 
who, for political considerations, have "denied the faith" and have gone "con- 
trary to the doctrine which they have learned" — the Attorney-General, who 
issues an apology for what the President has already done; certain lawyers, 
who seek to be made Judges of the Supreme Court, or Brigadier-Generals; and 
Representatives in this General Assembly, who feel bound to defend their party, 
right or wrong. In opposition to all this. Sir, even in the midst of these degen- 
erate days, I am able to adduce the testimony of one who comes down to us from 
the pure days of the fathers, who is laden with the garnered wisdom of many a 
year, and who embodies in himself all the constitutional and legal learning of 

the age. 

"Clarum et venerabile nomeni" 

"Serus in ccelum redeasl" 

I refer. Sir, to the opinion of Chief-Justice Taney, of the Supreme Court of the 
United States, delivered on the 1st of June, 1861, in the case of ex parte John 
Merryman. The whole opinion constitutes an able defense of the right of per- 
sonal liberty to the American citizen, and is worthy of its learned and venerable 
author. I shall quote but a few of his clear and emphatic sentences. Referring 
to the extraordinary claim of power made by the President, and knowing how 
utterly at variance it was with all established opinion and with all previous 
practice in this country, he said : 

"1 certainly listened to it with some surprise, for I had supposed it to be one of those 
points of constitutional law upon which there was no difference of opinion, and that it was 
admitted on all hands that the privilege of the writ could not be suspended except by act of 
Congress. 

And further on, after discussing the extent to which the rights of the citizen 
had been infringed by this arrest and imprisonment, he again says : 

"The Constitution provides that 'no person shall be deprived of life, liberty, or property, 
without due process of law.' It declares that 'the right of the people to be secure in their 
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not 
be violated, and no warrant shall issue but upon probable cause, supported by oath or 
affirmation, and particularly describing the place to be searched, and the persons and 
things to be seized.' It provides that the party accused shall be entitled to a speedy trial 
in a court of justice. 

"And these great and fundamental laws, which Congress itself could not suspend, have 
been disregarded and suspended, like the writ of habeas corpus, by a military order, sup- 
ported by force of arms. Such is the case now before me; and I can only say, that if the 
authority which the Constitution has confided to the judiciary department and judicial 
officers may thus, upon any pretext or under any circumstances, be usurped by the mili- 
tary power at its discretion, the people of the United States are no longer living under a 
government of laws, but every citizen holds life, liberty, and property at the will and 
pleasure of the army officer in whose military district he may happen to be found." 

Such, Mr. Speaker, is the history of this ancient and sacred right of personal 
LIBERTY, such the doctrine concerning it in England, such the guarantees and 
safeguards of our own Constitution, and such the opinions of our American 
jurists and decisions of our American courts. It is vain. Sir, for the President, 
the Attorney-General, or the advocates of arbitrary power upon the floor of this 
2 



181 

Hous«s to attempt to deduce a sanction of such authority as thftt assumed by 
the present Chief Executive from our Federal Constitution, Its history, its 
spirit, its words, its context, and its uniform interpretation, are all against them. 
But the I'resident, in his message to which I have referred, does not rely 
wholly on his authority under the Constitution, and neither do all his apologists 
who have spoken in the cours<; of this debate. He intimates that he has power, 
notwithstanding the Constitution, and that there are circumstances under which 
he may set aside its restrictions. This idea receives a bolder embodiment in 
his address to the clergymen of Chicago, in which he says, with reference to a 
scheme they were proposing: 

"Understaud, I raise no objection af/ainst it on legal or constitutional grounds ; for, as Com- 
mander-in-Clucl' of the Army and Navy, in time of war, I suppose / have a right to take 
any measure which may best subdue the enemy." 

J^^ These words were spoken, it is true, with reference to the issue of an execu- 
tive proclamation aholishing slavery in the States ; but the assumption of a 
power to disregard constitutional rights in one respect is equally potent for their 
disregard in another. The same authority by virtue of which the President 
issues the proclamation of September 22d, in acknowledged violation of the 
constitutional guarantees of the right of PRoi'Eirrv, is the authority by virtue 
' of which he issues the more dangerous proclamation of September 24th, in vio- 
lation of the constitutional guaranteeb of the riglit of pkhsonal liberty. It is 
the assertion, on the part of the President, of a power inherent in himself, as 
Commander-in-Chief of the Army and Navy, by virtue of which he may set 
aside both constitutions and laws. It is the famous "war power," of which 
we hear so much, and which we are told is based on tlm n(^cessities of the people 
and the safety of the nation. This "war power" is indeed a great power, if all 
be true its friends on this floor have asserted concerning it. Armed with this 
power, the President may not only emancipate the slaves and suspend the writ 
of habeas corpus, but he may make laws respecting an establishment of religion, 

' and prohibit the free exercise thereof; he may abridge the freedom of speech 
and of the press, and the right of the people peaceably to assemble and to peti 
tion t!)e government for a redress of grievances ; he may infringe the right of 
the pe le to keep and bear arms ; he may arrest the citizen without warrant ; 
he ma imprison him without indictment of a grand jury ; he may deprive him 
of life as well as liberty and property, without process of law ; he may deny 
him the right to trial by jury, the right to be informed of the nature and cause 
of the accusation, the right to be confronted with the witnesses against him, the 
right to have compulsory process to obtain witnesses in his favor, and the right 
to have the assistance of counsel for his defense ; he may require excessive bail, 
impose excessive lines, and inflict cruel and unusual punishment; he may unite 
in himself all legislative and judicial, as well as executive power, and make 
perpetual his term of office ; he may utterly overthroAv our political institutions, 
and make the freest government on earth the most despotic. 

But let us analyze this famous war power under which we are told all these 
things can be done. Let us see of what powers the President of the United 
States is possessed as a military officer over and above those of which he is 
possessed as a civil officer. Let us examine the foundation of the claim that 
in his 7nilitary capacity he is superior to the Constitution and the laws, and may 
Bet both aside whenever in his judgment he can thus best accomplish a given 

Much misapprehension prevails, Mr. Speaker, with reference to the military 
authority of the President and its relation to the safeguards, restrictions, and 
regulations of the Constitution and laws in time of war. In despotic govern- 
ments, where all powers unite in one person, the military commander may have 



19 

tmbounded authority, but in this country as in England there is nothing vague 
uncertain, or arbitrary in the exercise of the military authority of the Presideni 
any more than in the exercise of his civil authority, — in tunc of war, any mor 
than in time of peace. Whatever authority the Presidt-nt of the United State 
possesses and exercises as a military officer, he possesses and exercises under lau 
just as much as he possesses and exercises under law his autliority as a civi 
officer. This law is two-iokl, embracing what is commonly known as Militar 
law and Martial law. The two are totally distinct, though they hav(? beei 
much confounded in the course of this discussion. Outside of these two there i 
"no such thing as " war-power," — a word to be found in no dictionary, and appai 
<intly invented to mislead. What then is Military Law? It is written parti; 
in the Constitution and partly in the Acts of Congress. By the terms of th 
Constitution the President is made "Commander-in-Chief of the army and nav; 
of the United States, and of the militia of the several States, when called int 
the actual service of the United States." He holds this position hj force of th 
Constitution, it is true, but it is equally true that he holds this position unde 
and in subordination to the Constitution, and th;it in his conduct in this capacit; 
he is to be governed by the terms of that instrument and by the military law 
and articles of war enacted by Congress in accordance with it. To that Constitu 
tion and to those laws and articles so enacted he owes prccis(dy the sam 
obedience as "Commander-in-Chief," that he owes to the Constitution and civi 
laws as President. Nor has he any more power in any way over the militar 
laws and articles of war than he has over any other laws. He possesses ni 
legislative power in this capacity. He can not make military law. He can no 
make an article of war. He can not alter or suspend either the one or the other 
He may issue orders for the government of the ai-my, but only in subordinatioi 
to and in accordance with the Constitution and the military laws and articles o 
war previously enacted by Congress for such regulation and government. 

But for whose regulation and government. Sir, are these military laws intended 
and over whom does this military power of the President extend 1 Military law 
the exercise of military authority, pertains only and exclusively to military men 
It is for the soldier and not for the citizen. The army, the navy, the militia ii 
actual service, these and these alone are subject to military government, may b< 
arrested by military officers, tried by military courts, and punished wit^ "militarj 
penalties. It is part of the contract into which they enter when thd |cease t( 
be citizens and become soldiers. But even a soldier can be tried by c urt mar 
tial only for violation of military law, which includes no other offenses than thos« 
against discipline and the good order of the service. For any crime agains 
civil law he must be delivered to the civil authorities and tried by the civi 
courts. How much less then can a citizen, for a real or supposed crime agains 
his country, be subjected to the authority of military officers and to the punish 
ment of military courts. Military law thus bears exclusive relation to militar) 
men, and has nothing whatever to do with the citizen. This has always beei 
the doctrine in England since the enactment of the Petition of Right, and m 
other doctrine has ever before been pretended in this country. 

It remains only to discuss Martial law. Martial law is the law of the sword 
the law of force. It is an unwritten law, lex non scripta, that exists nowhen 
•except in the will and judgment of such military commander as chooses to exer 
■cise unlimited authority over life, liberty, and property. Blackstone tells us 
•that " martial law, which is built upon no settled principles, but is entirely arbi 
•trary in its decisions, is, as Sir Matthew Hale observes, in truth and reality, n< 
law ; but is something indulged rather than allowed as a law." An eminen 
and learned Justice of our own country describes it in these vigorous words 
•*' By it (martial law) every citizen, instead of reposing under the shield of knowr 
.^nd fixed laws as to his liberty, property, and life, exists with a rope round hii 



20 

neck, subject to be hung up by a military despot at the next lamp-post, under 
the sentence of some drum-head court-martial." 

It certainly is a matter of very grave importance, Mr. Speaker, to every citi- 
zen, to know to what extent such law as this may prevail in our own country, 
and over whom such absolute authority may be exercised. In England, since 
Charles I. lost his head and James II. his crown, no monarch has attempted to 
institute such law within that realm. It was one of the articles of the Petition 
of Right, " that no commission shall issue to proceed, within this land, according 
to martial law." More than two centuries ago the free spirit of our English 
fathers could not brook its despotism, and the doctrine that has ever since 
obtained concerning it in that country, is thus laid down by Lord Loughborough : 

" In the preliminary observations upon the case, my brother Marshall went at length 
into the history of those abuses of martial law which prevailed in ancient times. This 
leads me to an observation that martial law, such as it is described by Hale, and such, 
also, as it is marked by Mr. Justice Blackstone, does not exist in England at all. Where 
martial law is established and prevails, in any country, it is of a totally different nature 
from that which is inaccurately called martial law merely because the decision is by a 
court-martial, but which bears no affinity to that which was formerly attempted to be 
exercised in this kingdom; which was contrary to the Constitution, and which has been 
for a century totally exploded. * ****** « 

"In the reign of King William, there was a conspiracy against his person in Holland, 
and^the persons guilty of that conspiracy were tried by a council of officers. There was, 
also, a conspiracy against him in England; but the conspirators were tried by the common law. 
And, within a very recent period, the incendiaries who attempted to set fire to the docks 
at Portsmouth, were tried by the common law. -In this country, all the delinquencies of 
soldiers are not triable, as in most countries in Europe, by martial law ; but, where they 
are ordinary offenses against the civil peace, they are tried by the common-law courts. 
Therefore, it is totally inaccurate to state martial law as having any place whatever within the 
realm of Great Britain." — (Grant v. Gould, 2 H. Bla. 69.) 

Now will any one pretend that, while the subjects of a limited monarchy are 
thus protected in their natural rights and secured against oppression, the 
citizens of free America, in the words of Judge Derbigny, spoken a half century 
ago, " are left at the mercy of the will of an individual who may, in certain cases, 
the necessity of which is to he judged of hy himself, assume a supreme, overbear- 
ing, unbounded power ! The idea is not only repugnant to the principles of any 
free government, but subversive of the very foundations of our own." 

Under our Constitution Congress has power to declare war. The power to 
declare war implies, of course, the power to resort to the usual and necessary 
means of carrying it on. By virtue of this the commander of any force, as well 
as the Commander-in-Chief, may do whatever is necessary and is in accordance 
with the laws of civilized warfare, to accomplish the purpose of his command. 
All this, it is evident, is a fair deduction of power from the Constitution and 
laws, and is in no way antagonistic to thepi or subversive of them. Such com- 
mander may also proclaim martial law, and assume control of citizens as well as 
soldiers. But for what time, over what extent of territory, and to what degree 
may he do this ? I answer, only so far forth as is absolutely necessary to the 
accomplishment of his purpose ; and if he overstep these limits he does so at hia 
peril. He may proclaim martial law over such space as then and there is the 
scene of warlike operations. When battle is imminent, he may rule by such 
authority a camp, a besieged city, the space between two hostile armies, or other 
territory within the sphere of his actual operations in the field. At such time 
and within such limits he may disregard the civil rights of the citizen just so far 
as is absolutely necessary and no farther. He may institute martial law within 
the lines of his army, and appoint military commissions to try oflfenders against 
civil rights when in a foreign country or other place where there are neither 
courts of justice nor civil officers. But no sane man will pretend that the Com- 



21 

mander-in-Chief, or any or all other commandera combined, can therefore insti- 
tute martial law in States and Territories remote from warlike operations, where 
the courts are open, where the judicial officers are unimpeded in the discharge 
of their duties, and where consequently all oflfenders may be tried and punished 
in the manner prescribed by the Constitution and by the laws of Congress and 
of the States. The only martial law our Constitution and the genius of our 
government will tolerate under such circumstances is that which 1 have hereto- 
fore discussed, namely, the suspension hy Congress of the privilege of the writ 
of Habeas Corpus for a limited time and within such districts as the public safety 
may require, authorizing however neither military arrests nor military impris- 
onments. This is not martial law at all, and I am able to make the same boast 
for my own country that Lord Loughborough, whom I have already quoted, did 
for England, that outside of these exceptional emergencies connected with actual 
military operations in the field, " it is totally inaccurate to state martial law as 
having any place whatever within" the Republic of the United States. 

As there is no precedent in the history of England for two hundred years for 
the proclamation of martial law, so is there none whatever in the history of this 
country. Washington did not proclaim it, as is sometimes falsely asserted, at 
the time of the Whisky insurrection in Pennsylvania, bui issued to his soldiers 
these instructions : 

"That every officer and soldier will constantlj' bear in mind tliat ho comes to snpport 
the laws, and that it -would be peculiarly unbecoming in him to be, in any way, the in- 
fractor of them ; that the essential principles of a free yovernmeiit confine the province oj the 
military, when called forth on such occasions, to two objects : first, to combat and subdue all 
who may be found in arms in opposition to the national will and authority; secondly, to 
aid and support the civil magisteates in bringing ofleuders to justice. Tue dispensation 
OF this justice belongs to the civil magistrates; and let it ever be our pride and 
OUR GLORY TO LEAVE THE SACRED DEPOSIT THERE INVIOLATE." (Irving's Life of Washing- 
ton, vol. 5, ch. 26.) 

The example of JeflFerson has been appealed to by those who would here 
apologize for Mr. Lincoln, but it will not bear them out. When the whole country 
was filled with alarm by reason of Burr's conspiracy, and certain information 
concerning it was sent to Congress the Senate unanimously passed a bill sus- 
pending the privileges of the writ of habeas corpus for three months, which the 
House almost as unanimously rejected, President JeffePfon did not attempt its 
suspension of his own power, as no other but Presidenf^fr. Lincoln ever did. Mr. 
Jefferson did not even recommend the measure to Congress, nor did he authorize 
the arrest of Bollman and Swartwout. As soon as the prisoners reached Wash- 
ington they were taken before the Circuit Court, examined, and then committed 
for trial. Shortly after they were taken from prison on a writ of Iiaheas corpus, 
and discharged. * Let not the apologists of military power attempt to array upon 
their side the man who in his Inaugural Address, March 4th, 1801, announced, 
among others, these two as "essential principles" of our Government: 1 irst, 
" The supremacy of the civil over the military authority;" and second, 
" Freedom of person, under the protection of the habeas corpus^ 

But the honorable gentleman from Logan tell us that " General Jackson exer- 
cised martial authority at New Orleans when tlie invading army of Packenham 
was marching against the city." That is true ; but it is by no means true that 
the conclusion at which he arrives follows as a logical sequence — a proposition 
that might be generalized as to the honorable gentleman's conclusions without 
doing much violence to truth. General Jackson did indeed proclaim martial law 
within the limits of a besieged city at a time when, as the member from Logan 
says, the invading army of Packenham was marching against it. po«s it follow 
as a logical sequence from this that the President, as Comniander-in-Cluef, may 
proclaim martial law throughout th« length and breadth of the land, in States 



22 

and Territories where there is neither invasion nor insurrection ? Moreover, tl 
Oovernment expressly disapproved even of this exercise of martial authority I 
Gen- Jackson, and, limited and seemingly necessary as it was, the District Cou 
of Louisiana decided that he had overstepped the bounds of legitimate powe 
and had violated the Constitution and the laws. Then it was that the militai 
hero vindicwtcd the majestij of the law by submitting to the punishment it choo 
to inflict. The defender of New Orleans, the deliverer of his country from forei^ 
invasion, at the liead of a victorious ai'my, followed by an excited multitude, ar 
sustainnd by thousands of munificent and devoted friends, bowing in humb 
submission to the authority of an unarmed and unguarded Court, can hardly \ 
plead as a precedent for usurpation of judicial power and disregard of judici; 
processes. 

The venerable member from Montgomery has attempted to find a precedei 
for the establishment of martial law throughout the country in the condition <• 
affairs in Rhode Island during the Dorr rebellion, and authority for it in die d^ 
cision of Chief Justice Taney in the case of Luther v. Borden, occurring in th; 
connection. But the authority cited by the honorable member by no means su 
tains his proposition. The question before the Court in this case was not 
question of Executive authority under the Constitution of the United States, nc 
was it a question of Executive authosity at all, but wliether the Legislature ( 
Rhode Island, under the existing form of Government in that State, had or lia 
not power to declare martial law within its limits. This had already been di 
cided in the athrmative by the State authorities, and that decision was coneiusiv 
on the United States Court. I do not deny that the Constitution of any Stat 
might be so written as to give into any hands the people of that State choos 
the power temporarily to declare martial law. I do not deny that the Constiti 
tion of the United States might have been so written as to give into the hand 
of Congress or the President, or any other man, the power to declare martial la^ 
with as much rigor as that with which Queen Mary put it in force in Englan 
three hundred years ago. But the question is, was it so Avritten ? That questio 
was not touched upon in the case of Luther v. Borden, referred to by the membt 
from Montgomery, in the remotest degree ; and it is a strange ignorance in on 
so wise, or a still stranger perversity in one so good, that would lead to the us 
of a garbled extract from the remarks of the Chief Justice in that case, for th 
establishment of an opinion entirely contradictory to the opinion expressed b 
him in tlie Merryman case, to which I have already referred, and in which th 
question of Executive authority, under the Constitution of the United Statei 
was directly before the Court. 

These are the only precedents and authorities that have been urged in beha] 
of this supposed doctrine of martial law, and a casual review of them evince 
how far they fill short (jf its establishment. Under this examination, too, th 
vague and terrible outlines of this mysterious " war power," grow distinct, sii 
and its huge proportions sensibly diminish. What, then, are the powers of th 
President as Commander-in-Chief in time of war? I answer: Over all person 
connected with the army, the navy, and the militia in actual service, he ha 
military power and command. He may issue orders for their government an 
regulation. They may be arrested by military officers, tried by military courts 
and punished with military penalties for all breaches of discipline and gooi 
order in the army. But all this must be done in subordination to, and in th 
manner prescribed btf, the Constitution; and the military laws and articles of wa 
enacted by Congress. This military authority pertains exclusively to soldiers. 

I answer further, tliat, dver all persons and property within the limits of actu.a 
warlike operations in the field, and at the time of such warlike operations, h 
may exercise such authority as is necessary to accomplish the purpose of hi 
command. And when in a foreign country or elsewhere the courts of justice ar 



23 

not accessible, he may institute military commissions for the trial of offenses 
against civil laws, whether committed by soldiers or others within the lines or 
immediate neighborhood of his army, and through these military commissions 
may inflict the punishments prescribed by such laws. 

Of "war power," beyond this, there is none, sir, vesting either in the President 
of the United States or in any inferior commander. But it is most manifest that 
the proclamation of the President, and the proceedings under it in the form of the 
military arrest and arbitrary detention of our citizens, can find no justification 
in these principles, and entirely overstep these boundaries and limitations. Ou 
what, then, are these proceedings based ? I will answer that question in the 
words of a late Judge of the Supreme Court of the United States, a man eminent 
' for his legal learning, and who never belonged to that party which is here so 
freely charged with being disposed to find fault with a legitimate exercise of 
power. 

"They spring," says Mr. Justice Curtis, "from the assumed power to extend 
martial law over the whole territory of the United States ; a power for the 
exercise of which hy the President, there is no warrant whatever in the Constitution ; 
a power which no free people could confer upon an Executive officer and remain a 
free people. For it would make him the absolute master of their lives, their 
liberties, and their property, with power to delegate his mastership to such satraps 
as he might select, or as might be imposed on his credulity or his fears.'' 

Mr. Speaker, I have thus discussed at much greater length than I intended the 
nature of the power claimed by the President and the grounds he assigns for its 
exercise. I have attempted to show that no such power is conferred upon him by 
the Constitution or can be exercised without its violation ; and that no such power 
is implied in his position as Commander in-Chief of the army and navy and of 
the militia in actual service. I have not done this, sir, with a fault-finding dis- 
position nor in a captious spirit toward the Administration. Such spirit or such 
disposition does not become the grave and fearful exigencies of the times. To 
the Administration in its hour of peril I am willing to accord a hearty support 
in the full exercise of all its constitutional powers. Those constitutional powers 
I believe to be sufficient for the maintenance of the Government and for the ac- 
complishment of every legitimate purpose. I protest against Executive usurpation 
because I believe it is calculated to hinder rather than hasten the end dear alike 
to us all — of the restoration of our old and honored Union. I protest against 
Executive usurpation, because if I have read history to any purpose, such usurpa- 
tion is the customary weapon by Avhich free governments are destroyed. 1 have 
long listened, sir, with pain and with fearful forebodings, to the openly expressed 
disregard for our Federal Constitution, its provisions and limitations, on the part 
of those high in authority in this land. With pain and with fearful forebodino-g. 
I have heard those expressions reiterated in the course of this debate. Sir, what 
words of folly are these that are beginning to pass almost as a maxim in the 
mouths not only of the people, but of those who should be their teachers — that 
" the Constitution was made for the country, and not the country for the Consti- 
tution!" This Constitution was indeed made for the country, and for the country 
it must he preserved ; else all that is of value in that word country is lost to us 
forever. Sir, what words, I will not say of folly, but of madness, are these, 

which have found their way into the mouths even of lawyers and statesmen 

that " the safety of the people is the supreme law ;" a translation of the old 
despotic maxim, salus populi, suprema lex! The Constitution, sir, is the only 
" supreme law" of this land, and its provisions and restrictions the only " safety." 
Destroy that, and there is neither safety nor law, except as it is to be found in 
the uncontrolled will and judgment of one man. Destroy that, and our portion 
is either DESPOTISM or anarchy. I cannot believe, sir, that safety lies in the 
way of despotism, or that the people of this land are prepared to accept it. The 



24 

alternative, I do not hesitate to say, is even worse. Sir, I learned, long ago, in 
Aristotle, that " the rule of a mob is the worst of tyrannies." 

TuTTwv Twv rupavvi^wv rsy.suraia rj SrnJ.oxpa.ria, 

I have learned the same lesson iu the caprices of the Athenian Democracy ; 
I have learned it in the proscriptions of the French revolution. Heaven forbid 
that I should learn it again in the spirit of lawlessness that is beginning to 
prevail among the people of this Republic. 

From this dread dilemma I know of but one way of escape. It is found in a 
strict adherence to the letter and spirit of our Federal Constitution. I know, 
sir, that in giving utterance to this sentiment I lay myself open to the largest 
extent to the charges so abundantly brought in this House and elsewhere against 
those who clamor for CONSTITUTIONAL LIBERTY. If it be a crime to plead 
for that which has hitherto been the crowning glory of this nation, and which our 
fathers have ban led down to us as our best bii-thright and noblest in heritance, then, 
sir, I am guilty. If it be a crime to love the Constitution under which I was born, 
to which I owe the abundant privileges of my youth and manhood, and around 
which cluster all my hopes for the future, then, sir, again I am guilty. To that 
Constitution, sir, we owe all our national greatness ; to that Constitution we owe 
all our national privileges. It is the palladium of our liberties, the foundation 
of our free institutions, the guarantee and protection of our civil and political 
rights. Let others do what to them seems best. As for me, in these dr«ad days 
of doubt and darkness, I will plant my feet on the Constitution of the Union as 
the only rock of support. Living, I will stand there, and there I will die. 
" And," in the words of a great American statesman, whose fame shall increase 
with the ages, "should I leave no other legacy to my children, by the blessing 
of God, I will leave them the inheritance of free principles and the example of 
a manly, independent, and constitutional defense of them." 



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